25 FLRA No. 86
JOINT COUNCIL OF UNIONS, GPO
Union
and
UNITED STATES GOVERNMENT
PRINTING OFFICE
Agency
Case No. 0-NG-1310
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute). The appeal concerns
the negotiability of four proposals relating to corrective
(disciplinary) action. We find that Proposal 1 is within the duty to
bargain and that Proposals 2, 3 and 4 are outside the duty to bargain.
II. Proposal 1
Article VIII, Section 1. Corrective action means any action by
management that could result in disciplinary action; i.e., verbal
warning to suspension, removals, reduction in pay, grade, or
status against any employee. (Only the underscored portion is in
dispute.)
A. Positions of the Parties
The Union contends that this proposal simply defines the term
"corrective action" to include actions which result in employees' loss
of "status" -- that is, changes in employees' work assignments. The
Union argues that the proposal would not prevent management from
changing an employee's work assignment or from taking any other actions
affecting an employee's status, but would only include within the scope
of the negotiated grievance procedure corrective actions involving
"status." Union Petition for Review at 1.
The Agency contends that the proposal directly interferes with
management's right to assign work under section 7106(a)(2)(B). The
Agency argues that the ultimate effect of the proposal would be to allow
an arbitrator to overturn management's work assignments, thus
interfering with the right to assign work.
B. Analysis and Conclusion
We find Proposal 1 to be negotiable. Based on the record in this
case, the term "status" refers to changes in work assignments. We agree
that the only effect of the proposal is to include within the scope of
the grievance procedure changes in work assignments which result from
disciplinary action.
The matters covered by the proposal are matters relating to the
conditions of employment of unit employees and are subject to the
negotiated grievance procedure unless otherwise excluded by the parties'
agreement. See sections 7103(a)(9) and 7121 of the Statute. By
including actions affecting employee status among the corrective actions
which would be within the scope of the grievance procedure, the proposal
simply specifies that which is already otherwise provided under the
Statute. The Agency's argument that the ultimate effect of the proposal
would be to allow an arbitrator to overturn management's work
assignments is without support. The proposal is simply definitional;
nothing in the proposal requires or suggests that it is to be enforced
in a manner which would violate management's rights or otherwise be
inconsistent with law. Of course, should the parties agree to this
proposal and include it in their agreement, management would retain the
right to challenge the grievability and arbitrability of any grievance
which sought to enforce that provision in a manner which is inconsistent
with law. Proposal 1, therefore, is consistent with law and within the
duty to bargain.
III. Proposal 2
Article VIII, Section 11. All corrective actions must be
initiated within five days after the supervisor becomes aware of
the alleged incident or upon the completion of an investigation
and the next level of authority must make a decision to concur or
disagree within ten days after the supervisor's decision to
initiate corrective action. Otherwise no corrective action can be
initiated, based on that alleged incident.
A. Positions of the Parties
The Union contends that this proposal does not interfere with
management's right to discipline employees, but only places limitations
on how long management may take to decide on corrective actions,
following the completion of any investigation. The Agency argues that
the proposal clearly precludes management from exercising its statutory
right to discipline employees.
B. Analysis and Conclusion
This proposal expressly prohibits the Agency from taking corrective
(disciplinary) action if the action is not initiated at the supervisory
level within five days after the supervisor becomes aware of the alleged
incident or within five days after completion of an investigation.
Further, it prohibits corrective action at the next level of authority
if the action is not taken within ten days of the supervisor's action.
We find that this proposal has the same effect as the proposal we
found nonnegotiable in American Federation of Government Employees,
AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station,
Concord, California, 24 FLRA No. 57 (1986). The proposal in Naval
Weapons Station required that supervisors initiate disciplinary action
within fifteen calendar days of the alleged offense or the date the
supervisor became aware of the offense. The proposal allowed for
exceptions to the 15-day limit under circumstances beyond the employer's
control. We determined that the 15-day time limit constituted a
contractual limitation which would prevent the Agency from disciplining
employees in certain circumstances when the 15-day period was exceeded.
We concluded that the proposal interfered with management's rights and
did not constitute a negotiable procedure within the meaning of section
7106(b)(2) or an appropriate arrangement under section 7106(b)(3) of the
Statute.
The proposal in this case likewise would establish a contractual
limitation which would prevent the Agency from taking corrective action
or disciplining employees in certain circumstances when the 5-day or
10-day periods were exceeded. Therefore, for the reasons in Naval
Weapons Station, Proposal 2 is outside the duty to bargain. See also
National Federation of Federal Employees, Local 615 and National Park
Service, Sequoia and Kings Canyon National Parks, U.S. Department of
Interior, 17 FLRA 318 (1985) (Provision 2), affirmed sub nom. National
Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477 (D.C.
Cir. 1986).
IV. Proposal 3
Article VIII. Section 12. No corrective action will be taken
against any employee for alleged violation of any GPO Instruction
or Rule or changes thereto that have not been negotiated between
GPO and the Council.
A. Positions of the Parties
The Union states that this proposal does not prevent management from
exercising its rights to implement new policies or regulations, but only
seeks to assure that management fulfills its statutory obligation to
negotiate on